Opinion
2018–14168 Index No. 102972/12
02-24-2021
Joseph MARINO, et al., respondents, v. Emily MAZZUOCCOLA, et al., appellants, et al., defendant.
Gyimesi & Wedinger, P.C., Staten Island, N.Y. (Laurel A. Wedinger of counsel), for appellants. Menicucci Villa Cilmi, PLLC, Staten Island, N.Y. (Daniela Guerrero of counsel), for respondents.
Gyimesi & Wedinger, P.C., Staten Island, N.Y. (Laurel A. Wedinger of counsel), for appellants.
Menicucci Villa Cilmi, PLLC, Staten Island, N.Y. (Daniela Guerrero of counsel), for respondents.
REINALDO E. RIVERA, J.P., COLLEEN D. DUFFY, ANGELA G. IANNACCI, PAUL WOOTEN, JJ.
DECISION & ORDER
In an action, inter alia, pursuant to RPAPL article 15 for a judgment declaring, in effect, that an easement over a certain portion of the plaintiffs' real property is invalid, the defendants Emily Mazzuoccola and Taylor Mazzuoccola appeal from an order of the Supreme Court, Richmond County (Alan C. Marin, J.), entered November 1, 2018. The order, insofar as appealed from, denied the motion of the defendants Emily Mazzuoccola and Taylor Mazzuoccola to extend a notice of pendency previously filed and granted those branches of the plaintiffs' cross motion which were to cancel and discharge the notice of pendency and the subject easement.
ORDERED that the order is reversed insofar as appealed from, on the law, with costs, the motion of the defendants Emily Mazzuoccola and Taylor Mazzuoccola to extend the notice of pendency is granted, and those branches of the plaintiffs' cross motion which were to cancel and discharge the notice of pendency and the subject easement are denied.
In an order dated September 10, 2018, the Supreme Court determined, inter alia, that an easement over a certain portion of the plaintiffs' real property was invalid. On September 25, 2018, the defendants Emily Mazzuoccola and Taylor Mazzuoccola (hereafter together the defendants) moved to extend a notice of pendency previously filed against the property where the easement is located. The plaintiffs cross-moved, among other things, to cancel and discharge the notice of pendency and the subject easement. In an order entered November 1, 2018, the Supreme Court, inter alia, denied the motion and granted those branches of the cross motion. The defendants appeal.
The Supreme Court should have granted the defendants' motion to extend the notice of pendency, and denied that branch of the plaintiffs' cross motion which was to cancel and discharge the notice of pendency. The defendants' motion was timely made and the defendants showed good cause for the extension of the notice of pendency (see CPLR 6513 ; Knopf v. Sanford, 110 A.D.3d 502, 972 N.Y.S.2d 893 ). Contrary to the plaintiffs' contention, they failed to establish a ground for mandatory cancellation of the notice of pendency (see CPLR 6514[a] ; see generally Nastasi v. Nastasi, 26 A.D.3d 32, 39, 805 N.Y.S.2d 585 ).
Moreover, in light of this Court's determination in a related appeal from the order dated September 10, 2018 (see Marino v. Mazzuoccola, 191 A.D.3d 969, ––– N.Y.S.3d ––––, 2021 WL 710642 [Appellate Division Docket No. 2018–13527 ; decided herewith]), the Supreme Court should not have granted that branch of the plaintiffs' cross motion which was to cancel and discharge the subject easement.
RIVERA, J.P., DUFFY, IANNACCI and WOOTEN, JJ., concur.